Keith Leroy Tharpe, 39, was
sentenced to death in January 1991 in Jones County for the shotgun
slaying of his 29-year-old sister-in-law, Jacqueline Freeman.
25, 1990, Mr. Tharpe, who had repeatedly threatened and harassed his
estranged wife and her family, used his vehicle to force his wife's car
off the road. After shooting Ms. Freeman twice, he kidnapped and raped
his estranged wife.
Mr. Tharpe's only prior arrests were for driving
violations. The state Supreme Court ordered the trial court to
reconsider Mr. Tharpe's sentence, and that has been pending since
(262 Ga. 110)
(416 SE2d 78)
WELTNER, Presiding Justice.
Murder. Jones Superior Court. Before Judge Thompson.
Keith Leroy Tharpe was convicted by a jury in
Jones County of malice murder and two counts of kidnapping with
bodily injury. Finding the presence of three statutory aggravating
circumstances, see OCGA 17-10-30, the
jury sentenced Tharpe to death for the murder. He appeals. We affirm.
Tharpe's wife left him on August 28, 1990 and
moved in with her mother. Following various threats of violence made
by the defendant to and about his wife and her family, a peace
warrant was taken out against him, and the defendant was ordered not
to have any contact with his wife or her family. Notwithstanding
this order, Tharpe called his wife on September 24, 1990 and argued
with her, saying if she wanted to "play dirty," he would show her "what
On the morning of the 25th, his wife and her
sister-in-law met Tharpe as they drove to work. He used his vehicle
to block theirs and force them to stop. He got out of his vehicle,
armed with a shotgun and apparently under the influence of drugs,
and ordered them out of their vehicle. After telling the sister-in-law
he was going to "f--- you up," he took her to the rear of his
vehicle, where he shot her. He rolled her into a ditch, reloaded,
and shot her again, killing her. 2
Tharpe then drove away with his wife. After
unsuccessfully trying to rent a motel room, Tharpe parked by the
side of the road and raped his wife. Afterward, he drove to Macon,
where his wife was to obtain money from her credit union. Instead
she called the police.
1. The evidence supports the convictions. Jackson
v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Haynes
v. State, 159 Ga. App. 34 (1) (283 SE2d 25)
2. There is no merit to any of Tharpe's
constitutional attacks on the Unified Appeal Procedure. See, e.g.,
Meders v. State, 260 Ga. 49 (9) (389 SE2d
3. Tharpe was not entitled to review the
prosecution's jury records. Wansley v. State,
256 Ga. 624 (2) (352 SE2d 368) (1987).
4. During the trial, a hearing was conducted
outside the presence of the jury concerning possible communications
between a jailer and some of the jurors.
(a) Tharpe testified first, soon drawing a
hearsay objection. The court implicitly overruled the objection,
stating that although the hearsay might have no probative value, it
was a "foundation for what may come later on." Later, Tharpe
testified that the jailer had questioned him about the crime. When
his attorney asked him whether he had been advised of his right to
remain silent, the state objected that "this was a motion for
mistrial based on misconduct with the jury," not any Miranda issue.
The court did not rule on this objection because Tharpe's attorney
withdrew the question, stating he would "just abandon this line for
Tharpe now argues that "the trial court twice cut
off the defense questioning of [Tharpe], unconstitutionally chilling
the exercise of his right to testify on his own behalf." The court
at no time cut off defense questioning. There was no error.
(b) Tharpe next presented testimony of two
inmates who stated that they heard the jailer say it was his job to
"pick up some of the jurors that support the death penalty." The
state called the jailer to the stand. He denied having any contact
with any of the jurors. He testified that he did not "pick them up"
or "haul them around," and had not told any of the inmates that he
The trial court found that no contact had
occurred and denied Tharpe's motion for mistrial. The court's
finding was not, as Tharpe contends, contrary to the evidence, and
the denial of a mistrial was not erroneous.
5. Tharpe urges error in the denial of his motion
for change of venue under Jones v. State, 261
Ga. 665 (409 SE2d 642) (1991). Less than 12 percent of the
venire was excused because of the effect of pretrial publicity. No
"actual prejudice" has been shown, Lee v. State,
258 Ga. 82 (9) (365 SE2d 99) (1988)
and, under the rules applicable to this trial, there was no error.
6. Tharpe contends the prosecutor discriminated
racially in the exercise of his peremptory challenges. See Batson v.
Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Of the
qualified venire of 42 jurors from which the jury was selected, 9,
or 21 percent were black. The prosecutor used nine of his ten
allotted peremptories, striking five blacks and four whites. Tharpe
used 17 of his 20 allotted peremptories, striking 16 whites and 1
black. Two of the twelve members of the jury (16.67 percent) were
black. (One of the two alternate jurors also was black.)
Tharpe contends that these numbers, conjoined
with the prosecutor's "history of racially discriminatory jury
practices" as "documented" in Horton v. Zant, 941 F2d 1449 (11th
Cir. 1991), established a prima facie case of racial discrimination.
We find that the prosecutor successfully has rebutted that charge.
The prosecutor struck four whites and three of
the five blacks because they were opposed conscientiously to the
death penalty. As we have held, reasons falling short of justifying
an excusal for cause might well justify the exercise of a peremptory
strike. Hall v. State, 261 Ga. 778,
780 (2 a) (415 SE2d 158) (1991). A
prospective juror's conscientious aversion to the imposition of the
death sentence is an adequate reason to justify a peremptory strike
in a death-penalty case. Foster v. State, 258
Ga. 736 (2) (374 SE2d 188) (1988).
The state struck one of the two remaining black
prospective jurors because she had served recently on a jury in
another murder case, and had voted to acquit that defendant, who was
represented by the defense attorney involved in this case. This,
too, was a justifiable reason for striking her.
The remaining prospective juror was struck for
several reasons. One was for stating that she had attended three
years of elementary school, four years of junior high school and
twelve years of high school. Her responses on the questionnaire as
well as her demeanor during the voir dire examination showed "a
great deal of immaturity." Moreover, she kept making close eye
contact with the defendant all during the questioning."
It can be argued that explanations by the state
as to the striking of black jurors -- who allegedly make minor
mistakes on the jury questionnaire; or show signs of immaturity; or
demonstrate certain aspects of eye contact -- reflect certain
stereotypical attitudes as to particular groups. Any such
explanations should be given additional scrutiny by the trial court
before they are found acceptable. However, the trial court
determined that the prosecutor had presented legitimate reasons for
his challenges. We do not find this determination clearly erroneous.
Hightower v. State, 259 Ga. 770 (11) (386
SE2d 509) (1989).
7. Previous difficulties between Tharpe and his
family were admitted properly to show Tharpe's bent of mind toward
them. Wright v. State, 184 Ga. 62 (8) (190
SE 663) (1937). These difficulties were connected logically
to the crime on trial. Hall v. State, supra, 261 Ga. at 781 (6).
The trial court sustained Tharpe's objection to
the unsolicited opinion of one witness that Tharpe was "crazy" and
instructed the jury to disregard the answer. No impermissible "character"
evidence was admitted here, and the trial court did not abuse its
discretion by denying Tharpe's motion for mistrial. Sabel v. State,
250 Ga. 640 (5) (300 SE2d 663) (1983).
8. As Tharpe did not object on constitutional
grounds to the introduction into evidence at the sentencing phase of
a prior conviction based on a guilty plea (for violating the
habitual offender law), any claim that the guilty plea was not
entered knowingly, voluntarily and intelligently is waived. Spencer
v. State, 260 Ga. 640 (10 b) (398
SE2d 179) (1990). The admission of this plea would not rise
to the level of harmful error under the circumstances surrounding it.
9. Tharpe has failed to suggest any possible harm
arising out of the court reporter's failure to transcribe the charge
conference at the guilt phase.
10. There were no errors in the court's
instructions on reasonable doubt, Potts v. State,
261 Ga. 716 (14) (410 SE2d 89) (1991),
nor is there any infirmity in the instruction that the jury should
not be concerned at the guilt-phase of the trial with the effect of
its verdict. See Walker v. State, 254 Ga. 149,
158 (327 SE2d 475) (1985).
11. Tharpe contends the court's charge on
voluntary intoxication was incomplete. The trial court's
instructions were proper.
12. Tharpe did not object at trial to the
instruction, "Whatever your verdict is as to penalty, it must be
unanimous." We have held that such an instruction is proper. Potts
v. State, supra, 261 Ga. at 724 (17).
13. The b (7) statutory aggravating circumstance
is not unconstitutionally vague or overbroad as applied. Taylor v.
State, 261 Ga. 287 (13) (a) (404
SE2d 255) (1991).
14. Qualification of prospective jurors relative
to the death penalty is not unconstitutional. Ford v. State,
257 Ga. 461 (3) (360 SE2d 258) (1987).
15. Because Tharpe seized his wife in Jones
County, venue for prosecuting the charge of kidnapping with bodily
injury was proper in Jones County, even if the bodily injury were
inflicted in Monroe County. Potts v. State, supra, 261 Ga. at 720
The time to object to improper closing argument
is when the impropriety occurs at trial, when the trial judge may
take remedial action to cure any possible error. See, e.g., UAP (A)
(2) (d). When no timely objection is interposed, the test for
reversible error is not simply whether or not the argument is
objectionable, or even if it might have contributed to the verdict;
the test is whether the improper argument in reasonable probability
changed the result of the trial. [Cit.] [ Todd v. State,
261 Ga. 766 (2 a) (410
SE2d 725) (1991).]
We have reviewed the complaints, and find nothing
so harmful as to warrant relief.
17. As we held in Lonchar v. State,
258 Ga. 447, 453 (6) (369
SE2d 749) (1988):
The state was not precluded from urging the
presence of OCGA 17-10-30 (b) (2) and
(b) (7) simply because aggravated battery is a fact supporting both
18. During the voir dire examination, Tharpe
moved, outside the presence of any jurors, to strike a prospective
juror for cause. The court questioned the wisdom of the defendant's
motion, based on something in the juror's family background which,
in the court's opinion probably would make her "a good juror for the
defense." The court declined to disclose what he knew about the
juror's background. Now, the defendant contends the court should
have recused itself to "avoid all impropriety and appearance of
While the comment appears inappropriate, it does
not warrant recusal, or other relief.
19. The murder victim's husband was the first
person to arrive at the scene of the crime and to discover her body.
It was not error to allow him to identify photographs of the crime
scene. Compare Mincey v. State, 251 Ga. 255
(11) (304 SE2d 882) (1983).
20. At the sentencing phase of the trial, Tharpe
objected to evidence of his felony conviction for driving a motor
vehicle after having been declared a habitual traffic violator, see
OCGA 40-5-58 (c), on the ground that
the conviction might "suggest to the jury this man is a lifetime
career criminal" rather than merely a habitual traffic violator. The
state noted that the terms of the accusation specified "exactly"
what it was. Moreover, not only could counsel argue the meaning of
the conviction, the state agreed with the defense that the court
could include in its instructions a definition of the offense.
21. Tharpe has not shown that the state
suppressed any information concerning criminal records of any of its
witnesses. Rini v. State, 236 Ga. 715,
718 (225 SE2d 234) (1976).
22. The jury found the following statutory
1. The offense of murder was committed while the
offender was engaged in the commission of another capital felony, to
wit: kidnapping with bodily injury of Jaquelin Freeman.
2. The offense of murder was committed while the
offender was engaged in the commission of another capital felony, to
wit: kidnapping with bodily injury of Migrisus Tharpe.
3. The offense of murder was outrageously or
wantonly vile, horrible, or inhuman in that it involved an
aggravated battery to the victim.
See OCGA 17-10-30
(b) (2) and (b) (7).
(a) The evidence supports the jury's finding as
to the kidnapping with bodily injury of the murder victim. See
Division 1, above.
(b) The evidence supports the jury's finding as
to the kidnapping with bodily injury of Tharpe's wife. Childs v.
State, 257 Ga. 243 (15) (357 SE2d 48) (1987).
Although the death penalty may not be imposed for the offense of
kidnapping with bodily injury unless the victim is killed,
kidnapping with bodily injury is a capital felony that may be
considered by the jury as a b (2) statutory aggravating circumstance
supporting a death sentence for the offense of murder. Crawford v.
State, 254 Ga. 435, 440-441 (5) (330
SE2d 567) (1985).
(c) The evidence supports the jury's b (7)
finding. The jury was entitled to conclude from the evidence that
the defendant "maliciously" caused the bodily harm to the victim and
that his first two shots were not accidental.
23. As noted above, we conclude that the evidence
supports the jury's findings of statutory aggravating circumstances.
OCGA 17-10-35 (c) (2). We do not find
that Tharpe's death sentence was imposed as the result of passion,
prejudice or other arbitrary factor. OCGA
17-10-35 (c) (1). Tharpe's death sentence is neither
excessive nor disproportionate to penalties imposed in similar
cases, considering both the crime and the defendant. OCGA
17-10-35 (c) (3). The similar cases
listed in the Appendix support the imposition of a death sentence in
BENHAM, Justice, concurring.
After reviewing appellant's assertion that the
trial court erred by allowing the victim's husband to identify her
using photos of her body as he found it, addressed in Division 19 of
the majority opinion, I am of the opinion that this court should
adopt a rule well-established in Florida:
[A] member of the deceased victim's family may
not testify for the purpose of identifying the victim where
nonrelated, credible witnesses are available to make such
identification. [Welty v. State, 402 S2d 1159, 1162 (Fla. 1981).]
The basis for adoption of such a rule is "to
assure the defendant as dispassionate a trial as possible and to
prevent interjection of matters not germane to the issue of guilt."
Id. The emotionally-charged atmosphere brought about when a family
member views a photograph taken of a dead loved one can result in
conduct that has a reasonable probability of interfering with the
jury's verdict and may serve as the basis for reversible error. See
Stahl v. State, 749 SW2d 826 (Tx. Cr. App. 1988). As guardians of
the law, we must do all we can to insulate jurors from emotional
distractions that might result in a verdict based on sympathy rather
than on the evidence. Jones v. State, 569 S2d 1234 (Fla. 1990).
Adoption of the rule I propose would remove the main source of
emotional distraction from every homicide case tried in Georgia. The
proposed rule is not applicable to the case at bar, however, because
the testimony of the victim's husband, the person who discovered the
victim's body, was necessary to establish that the scene as depicted
in the photos taken sometime later by police photographers was that
which he had discovered.
1 The crime occurred on September
25, 1990. Tharpe was arrested the same day. He was tried on January 2
through January 10, 1991. He filed a motion for new trial on January 19,
1991. The motion was denied on August 15, 1991. The case was docketed in
this court on September 10, 1991. After extensions of time were granted
to the parties, the case was argued orally on January 22, 1991.
2 The wife could not remember if
the sister-in-law had been shot twice or three times. However, the
autopsy established that the victim had been shot three times -- once in
the arm, once in the chest and once in the head.
Joseph H. Briley, District Attorney,
Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior
Assistant Attorney General, Robert D. McCullers, Staff
Attorney, for appellee.
Charles D. Newberry, Shane M. Geeter, for
DECIDED MARCH 17, 1992 -- RECONSIDERATION DENIED
APRIL 1, 1992.
Keith Leroy Tharpe